UPDATE JUNE 28: The Supreme Court today handed down its decision on the Seattle and Louisville schools cases. Read our statement here.
This term, the Supreme Court faces a question that it set itself on a collision course with three decades ago. The Court will decide whether school districts in Seattle and Louisville can consider the racial composition of a particular school in deciding student assignments within a district.
The school assignment plans utilize race as a factor to try and alleviate systemic barriers to full participation and integration by taking race into account in student assignment. The irony of the Court addressing this particular question is palpable, given that a scant few decades ago the Constitution was interpreted as compelling governments and localities to remedy such racial inequities through race conscious plans.
How did the Court position itself to decide whether just taking race into account, even when proactively and voluntarily addressing de facto racial segregation, is Constitutionally permissible? By adopting an ideology of “color-blindness,” the Court has contrived an unintended constitutional mandate under the Equal Protection Clause that fails to acknowledge and distinguish different uses of “race” in our society. This jurisprudence, manifested through the Court’s “intent doctrine,” precludes the ability of courts to protect individuals who have suffered real harms as a result of racial inequities.
Thus, while the Court decides whether schools have the power to voluntarily follow Brown v. Board of Education’s mandate to eradicate racial segregation, we are left to ask the extent to which the Supreme Court’s equal protection jurisprudence has foreclosed the ability to address and rectify inequality, racial and otherwise. An increasing number of the Court’s decisions have crippled the foundations of civil rights laws laudably enacted by Congress and ingrained in our Constitution. The present legal landscape begs the question of how will the Court address racial inequality and segregation going forward.
The Court’s Ideology of Race
The Supreme Court has not coherently articulated a conception of race in the context of history and social reality. Instead, the Court persists in employing its ideology of color-blindness, which it portrays as a neutral principle. In fact, however, this ideology is far removed from the racial realities of society. The color-blind ideology treats any and all uses of “race” as false ascriptions of inherent characteristics, and thus inherently problematic. However, the affirmative use of race is oftentimes the only effective way to recognize and address real social phenomena.
This presumption, termed the “intent doctrine,” has been applied to any governmental action where groups are treated differently on the basis of race. Under this doctrine these overt uses of race are constitutionally permissible only if they are “[narrowly tailored] to serve a compelling governmental interest.” This standard, known as “strict scrutiny,” has for the most part been “strict in theory, but fatal in fact,” and has meant that a great many of the governmental actions designed to address racial inequality, in areas such as higher education, contracting, and voting, have been deemed unconstitutional. In essence, this ideology of color-blindness functions to “legitimate and thereby maintain the social, economic, and political advantages that whites hold over other Americans.”
Ironically, in the rush to impose its color-blind ideal, the Supreme Court has severely weakened the ability of the Fourteenth Amendment to protect racial minorities from discriminatory and inequitable practices. The Court’s ideologically created mandate to demonstrate “intent” creates a retrenchment of the ability to address racial inequality by requiring a plaintiff to prove the near-impossible: a decision-maker’s specific motivation to discriminate against a minority group. Thus to prove a claim under the current Equal Protection Clause jurisprudence, it is not enough for a plaintiff to show that the defendant acted with knowledge that his or her actions would have a discriminatory impact on an identifiable racial group. Instead, an aggrieved individual must show that the harmful government action was taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” This leads to a situation where the “practical result is to convert the burden of proof of improper motive into a substitute rule for upholding governmental action.”
This constricted “intent doctrine” permeates antidiscrimination law, ignores much of what we know about the dynamics of discrimination, and deprives many of redress for discrimination. The extraordinarily high burden almost requires a civil rights plaintiff to find a “smoking gun” statement expressing outward racial animus. In modern times, however, overt statements of racial hostility are known to be socially unacceptable. Additionally, the intent requirement does not take into account how modern cognitive science understands discrimination. Scholars such as Charles Lawrence, Linda Krieger, and Jerry Kang have demonstrated that discrimination is often a product of unconscious or implicit biases and categorizations, rather than “intentional discrimination.”
Turning a Blind Eye to Real Inequality
Of course, this willful ignorance of historical and social context is nothing new in the Court’s race jurisprudence. However, the cumulative and very deleterious effect is the inability of the Court (and resulting refusal by the public) to recognize, and therefore to directly address, the harms that accrue due to persisting racial inequality. Instead, the Court sees the Equal Protection Clause as a bulwark against the “harm” of a person being classified as a member of a race, rather than a safeguard from real harms suffered by an individual on account of race. This normative discourse of color-blindness ends up masking entrenched systems of inequality; it hinders any government agency – from the Seattle and Louisville school boards to post-209 California – from making race-conscious efforts to mitigate structural inequities. In the case of the school assignment plans, the districts utilize a race-conscious program not because race is some immutable characteristic to which they ascribe certain inherent characteristics, but because “race” has real social effects.
This inability to directly address racial inequity is rooted in the Supreme Court’s decision in Washington v. Davis, which essentially determined that the Equal Protection Clause would equate color-blindness with a constitutional mandate. The doctrinal feature that undergirds this color-blind mandate, the intent doctrine, largely prohibits governmental actors from taking overt, proactive action (ameliorative or otherwise) that attempts to modify social distribution on the basis of race. However, in the absence of overt usage of race, the existing social and economic distributions are assumed to be neutral and non-suspect. In this way, the Court, by importing a conception of what the neutral is, engages in a pretense of objectivity that actually preserves the existing distribution of social resources. Accordingly, this color-blind ethic sees baseline juridical regimes—from district assignment plans that rely on only factors other than race in Seattle and Louisville cases, to admissions criteria that rely on tests that have severe racial impacts in higher education, to “traditional districting criteria” in cases of voter districting—as natural.
Today, some of the most pernicious and pervasive forms of discrimination result from facially neutral practices that diminish the opportunities of whole minority communities. For example, Richard Thompson Ford has argued that governmental actors can now make decisions on the facially race neutral basis of geographical boundaries, despite the fact that those boundaries are a function of de jure and de facto segregation. These ostensibly neutral practices have the effect of allowing governmental decision-makers to take advantage of “locked –in” discrimination without being violative of the Constitution. With this limitation in place, it becomes increasingly difficult to remedy the effects of structural inequality. At the same time, the elimination of a right of action to bring suits based on a disparate impact severely hampers the ability of aggrieved parties to challenge much of the structural inequality in schools based on statutory civil rights protections.
However, some school districts, such as those being challenged in Louisville and Seattle, understand well that in a segregated community, students may not be able to interact or study together in integrated schools unless race is taken into account in assigning students to schools under a plan that offers an equal educational opportunity to all the districts’ children. Yet, the Supreme Court may well take away the districts’ ability to do so.
In her dissent in Gratz v. Bollinger, Justice Ginsburg noted that the Constitution must be color conscious so that it can “prevent discrimination being perpetuated and to undo the effects of past discrimination.” In other words, color-consciousness does not look at race because it falsely captures some presumed inherent qualities, but rather, because it captures and directly addresses the lived social reality of communities in which African Americans, Latinos and other people of color have less access to social resources than whites. By explicitly addressing the way in which race has been deployed in any particular action, the Court can accordingly apply a more fitting level of scrutiny necessary to determine if the action satisfies the Equal Protection Clause.
Almost all of the debate around these cases has taken as their starting point that the Court will apply “strict scrutiny” to the school plans at issue, and those in favor of maintaining race-conscious districting have attempted to demonstrate why the plans are narrowly tailored to serve a compelling governmental interest. However, it is becoming clear that the narrow Equal Protection Clause jurisprudence will continue to limit the ways in which society can remedy the social ill of racial oppression. While the Court will like continue to utilize its existing framework in Seattle and Louisville, it must at some point deal with the fact that “[i]n order to get beyond racism, we must first take account of race.”
 Many argue that this question is “fundamentally different” than any that the Court has previously faced. For instance, Judge Kozinski’s concurrence in Seattle argues against the shared analytical framework of the majority and dissent because “this case is fundamentally different from almost anything the Supreme Court has previously addressed.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (en banc), cert. granted, 126 S.Ct. 2351 (2006) (citing Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.) (Boudin, C.J., concurring), cert. denied, 126 S. Ct. 798 (2005). Professors Pamela Karlan and Goodwin Liu have pointed out that school desegregation plans and redistricting plans that take race into account are fundamentally different than affirmative action cases and should be treated accordingly. See Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 Cal. L. Rev. 1201 (1996); Goodwin Liu, Seattle and Louisville, 95 Cal. L. Rev. 277 (2007).
 Seattle, 426 F.3d 1162; McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff’d per curiam, 416 F.3d 513 (6th Cir. 2005), cert. granted sub nom. Meredith v. Jefferson County Bd. of Educ.,126 S. Ct. 2351 (2006).
 See generally Gary Orfield et al., Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education 53-55 (1996); see also Missouri v. Jenkins, 515 U.S. 70 (1995) (holding that interdistrict remedies are impermissible to correct intradistrict segregation).
 For example, Neil Gotanda has analyzed the various ways in which race has been employed by courts. See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1 (1991).
 First articulated in Washington v. Davis, 426 U.S. 229 (1976), the intent doctrine requires plaintiffs challenging the constitutionality of a facially neutral law to prove a racially discriminatory purpose on the part of those responsible for the law’s enactment or administration. Essentially, laws that distinguish groups based on race are subject to “strict scrutiny,” meaning that the law can only past constitutional muster if it is narrowly tailored to serve a compelling governmental interest. Conversely, laws that do not use race (or another suspect classification) are only subject to rational basis review, meaning that the law must be rationally related to a legitimate governmental purpose. In the most famous cases invalidating laws under rational basis review for violation of the Equal Protection Clause, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), and Plyler v. Doe, 457 U.S. 202 (1982), the Court arguably applied an “enhanced” form of the rational basis test. For more discussion of the real world effect of applying strict scrutiny, see infra.
 Brown v. Bd. of Educ., 347 U.S. 483 (1954). While Brown is held to be many things, it is best understood within an interpretation of the Equal Protection Clause understanding that: “guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and . . . that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.” Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2003).
 Cf. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 946-51 (1989).
 See Gotanda, supra note 4.
 Cf. Eric K. Yamamoto, Carly Minner, & Karen Winter, Contextual Strict Scrutiny, 49 How. L.J. 241 (2006). In this article, the authors demonstrate the ways in which the Court has employed a varied conception of race in which it may be willing to consider context in its strict scrutiny analysis. See also Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978).
 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 275 (1978) (opinion of Powell, J.)
 Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment) (citing Bakke, 438 U.S. 265, 362 (1978)).
 Bakke, 438 U.S. 265; Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down point-based affirmative action programs in higher education). But see Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding University of Michigan School of Law’s affirmative action program employing race as a “plus factor”).
 See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (striking down affirmative action in contracting).
 See, eg., Shaw v. Reno, 509 U.S. 630 (1993).
 See Gotanda, supra note 4, at 2-3.
 See, Washington, 426 U.S. 229.
 Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).
 Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution 154 (1989).
 But see, Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (stating that evidence of discriminatory impact “may provide an important starting point” to determine if there has been intentional discrimination).
 Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 323 (1987).
 Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995).
 Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).
 For a further discussion of the need to reevaluate the concept of intent based on advances in cognitive psychology and critical sociology, see the Equal Justice Society report by Eric K. Yamamoto, Susan K. Serrano, and Minal Shah Fenton, Redefining Discrimination: Using Social Cognition Theory to Challenge the Faulty Assumptions of the “Intent Doctrine” in Anti-Discrimination Law that is included in the supplemental materials.
 See, e.g., Personnel Administrator, 442 U.S. 256, 279 (holding that there is no constitutional violation when a governmental decision is made merely “in spite of” its known discriminatory impact); Shaw v. Reno, 509 U.S. 630, 657 (1993) (stating that racial considerations in districting “may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters,” in the face of the extant racial bloc voting).
 Seattle, 426 F.3d at 1199 (citing Miller v. Johnson, 515 U.S. 900, 911 (1995)). The Equal Protection Clause of the Fourteenth Amendment to the Constitution protects persons from discriminatory conduct by government actors.
 For an extended critique of adjudication that normalizes and legitimates its decisions according to this function, see Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). For a specific critique of the way that antidiscrimination law performs the function see Kimberlé Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law 101 Harv. L. Rev. 1331 (1988).
 See Grutter, 539 U.S. 306; Gratz, 539 U.S. 244.
 See Shaw v. Reno, 509 U.S. 630, 642
 Jerome McCristal Culp, Jr., Understanding the Racial Discourse of Justice Rehnquist, 25 Rutgers L.J. 597, 617 (1994) (arguing that the Rehnquist Court’s color-blind jurisprudence assumes that “the racial status quo, is an appropriate base line and that any deviation from that status quo invades a protected right”); See also Bakke, 438 U.S. 407 (Blackmun, J., concurring in part and dissenting in part) (Stating that, “We cannot-we dare not-let the Equal Protection Clause perpetuate racial supremacy.”)
 Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994).
 Daria Roithmayr, Locked In Segregation, 12 Va. J. Soc. Pol’y & L. 197 (2004).
 See Rachel F. Moran, Undone By Law: The Uncertain Legacy Of Lau v. Nichols, 16 Berkeley La Raza L.J. 1 (2005) (arguing that the elimination of the private right of action based on disparate impact claims may have the effect of undermining Lau v. Nichols which “barred school practices that have the effect of excluding children from the educational process based on language, where language is a proxy for race, ethnicity, or national origin”).
 Gratz, 539 U.S. at 302 (Ginsburg, J., dissenting) (quoting United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966)).
 In the Seattle and Louisville cases, many members of the Court questioned whether the districts could have achieved its racially motivated goal without overtly using race as a factor without subjecting themselves to the same constitutional scrutiny. In this sense there is a concern for the legitimacy of the legal system when the legal rules encourage “hiding the ball,” Gratz, 539 U.S. at 298 (Souter, J., dissenting), and legislation “through winks, nods, and disguises,” id. at 304 (Ginsburg, J., dissenting).
 Yamamoto et al., supra note 9.
 Bakke, 438 U.S. 407 ((Blackmun, J., concurring in part and dissenting in part).